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Police Suppression of Speech is Unconstitutional

Stories of innocent citizens being arrested for filming or recording the police in public areas have surfaced across the country more often in the last few years. The laws used to arrest and charge these individuals have varied, from obstructing government administration to obscure wiretapping claims. Regardless of the laws used, police departments around the nation have made one thing clear: If you dare attempt to impose transparency on these public servants by recording their actions on video and distributing the footage to the public, you will face the threat of jail time.

Some of the attempts by the police to prevent recordings from being made and/or distributed downright shock the conscience. In Massachusetts, Officer Michael Sedergren tried to get criminal wiretapping charges filed against a woman who filmed him beating an innocent man during a traffic stop so badly that he broke most of the bones in the man’s face and left him partially blind in one eye. In New York, police arrested a woman for having the “audacity” to film a traffic stop going on in front of her house. Suffolk County police arrested a news cameraman for filming a chase while standing on the sidewalk and charged him with the “obstruction of governmental administration.”

It goes without saying that criminalizing the filming of public officers engaging in public duties on public property goes against every shred of the American identity. Arresting those who attempt to monitor civil servants doing their jobs, and occasionally exposing their abuses, is the stuff of tyrants and dictators, not of an open and democratic society.

Fortunately, the First Circuit Court of Appeals unabashedly declared any prohibition of the filming of a police officer in public a clear violation of the First and Fourth Amendments. While the Fourth Amendment holding was specific to the facts of the Massachusetts wiretapping claim in the case, the conclusions reached by the court on questions concerning the First Amendment cut right to the core of the issue.

The Court pointed out that the “gathering [of] information about government officials … serves a cardinal First Amendment interest in protecting and promoting the free discussion of government ...” The court further noted that free speech concerning government action in the name of the public has “particular significance” because it is there that “the state has a special incentive to repress opposition.”

Moreover, the court completely rejected the argument wielded by police departments nationwide that allowing officers to be filmed in public interferes with their ability to do their job. The court reminded the police that “in our society, police officers are expected to endure significant burdens caused by citizens' exercise of their First Amendment rights,” and that “the freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”

The First Circuit is the highest court to rule on the question of recording the police. Along with the First Circuit, some state Supreme Courts have explicitly stated that recording police officers in public is unquestionably protected under their respective state constitutions.

There is no shortage of examples to remind us why the police must be monitored and held accountable for their actions. The First Circuit’s decision provides hope that this disturbing trend of prosecuting innocent civilians who seek to hold police accountable for their transgressions will be summarily reversed throughout the country.